Who gets to sit on a death penalty jury? You'll need sturdy walking shoes to research the question. We started here, in Witherspoon v. Illinois in 1968:
A man who opposes the death penalty, no less than one who favors it, can make the discretionary judgment entrusted to him by the State and can thus obey the oath he takes as a juror. But a jury from which all such men have been excluded cannot perform the task demanded of it.
And we ended up here, in Uttecht v. Brown yesterday:
Juror Z's assurances that he would consider imposing the death penalty and would follow the law . . . did not require the trial court to deny the State's motion to excuse Juror Z.
That's quite a journey.
No objection, but to what?
This blog is about what trial lawyers need to know next time, so I can leave most of the policy analysis to more capable others, a few of whom are listed in the note below. That's good news for me, because on a policy level (I humbly submit) this opinion only highlights the Court's jurisprudential death penalty mess, but a post on the take-home lesson is easy to write. The lesson is: Object clearly.
The Court summarized the moment of Juror Z's dismissal as follows:
Counsel, any challenge to this particular juror?
MR. MATTHEWS: I would, your Honor, not on the term beyond a shadow of a doubt, I think he would certainly stick with the reasonable doubt standard. But I think he is very confused about the statements where he said that if a person can't kill again, in other words, he's locked up for the rest of his life, he said, basically, he could vote for the death penalty if it was proved beyond a shadow of. And I am certainly going to concede that he means beyond a reasonable doubt. And if a person kills and will kill again. And I think he has some real problems with that. He said he hadn't really thought about it. And I don't think at this period of time he's had an opportunity to think about it, and I don't think he said anything that overcame this idea of he must kill again before he imposed the death penalty or be in a position to kill again. So, that is my only challenge.
MR. MULLIGAN: We have no objection.
THE COURT: Counsel, the request of the prosecutor's office, we will go ahead and excuse [Juror Z].
What did "no objection" mean? Was defense counsel "thank[ing] his lucky stars when the prosecutor bumped Z," one of several interpretations Justice Kennedy considered? Or was he instead saying he had "no objection" to Z remaining on the jury, as Justice Stevens supposed in dissent?
There are paragraphs of discussion in the opinion about what the precise legal impact of that "no objection" should be, and Justice Breyer's entire dissent is based on it. Defense counsel didn't have to object to preserve the error, but the Court had to struggle with how to weigh an affirmative "no objection," if indeed that's what was meant.
But that's for the policy bloggers. For us, there's only one point: object clearly. It isn't easy; we've all been shocked to see how what seemed like a plain oral statement took on a dozen different meanings in the transcript. But it's worth striving for.
Beyond habeas?
Two other points. First, when I wrote about the Uttecht oral argument in April, I warned that the opinion might not offer much guidance on how trial courts should handle unsure death penalty jurors, because the analysis might end in the maze of federal habeas corpus requirements. Reading the opinion now, I think I may have been wrong. At the beginning and end of his Uttecht opinion, Justice Kennedy does recite that federal courts defer to state trial courts on habeas. But like many a trial lawyer's supposed "theme," the idea never really connects to the argument itself. When he gets to the point, Justice Kennedy chooses words that say "we agree," not "we defer":
From our own review of the state trial court's ruling, we conclude the trial court acted well within its discretion in granting the State's motion to excuse Juror Z.
What's next?
Finally, what will death penalty juries look like, at least until the next time the Court changes course? Justice Stevens predicts:
the perverse result of its opinion is that a juror who is clearly willing to impose the death penalty, but considers the severity of that decision carefully enough to recognize that there are certain circumstances under which it is not appropriate (e.g., that it would only be appropriate in "severe situations"), is "substantially impaired." It is difficult to imagine, under such a standard, a juror who would not be considered so impaired, unless he delivered only perfectly unequivocal answers during the unfamiliar and often confusing legal process of voir dire and was willing to state without hesitation that he would be able to vote for a death sentence under any imaginable circumstance.
A panel of jurors like that would look a lot like the one that convicted Mr. Witherspoon in Illinois so long ago.
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Notes:
Some of the discussion elsewhere:
- Capital Defense Weekly is more optimistic than Justice Stevens: "Although some want to see larger trends at play here, I don’t." The post concludes, "The import of the opinion then, at least in my mind, is the blueprint it sets out for what voir dire should look like. It may also well be the template of what the Court will expect from here forward." More on that here tomorrow.
- Blawgletter notes the emotional opening of both this opinion and the Carhart partial abortion case: "The law aspires to decide cases through logic. Stirring up passions seems an odd way to promote public confidence in the system."
- SCOTUSblog's analysis is here.
- How Appealing has a round-up of news stories here.
I've omitted record cites in the opinion excerpts in this post.
(Photo by Jim Crossley at http://www.flickr.com/photos/raindog/436176848/; license details there.)
